IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA (APPELLATE JURISDICTION) CIVIL APPEAL NO: 02(f)-61-08/2018(W) BETWEEN 1. MKINI DOTCOM SDN BHD 2. LEE WENG KEAT 3. WONG TECK CHI 4. VICTOR TM TAN … APPELLANTS AND RAUB AUSTRALIAN GOLD MINING SDN BHD … RESPONDENT (IN THE COURT OF APPEAL MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO: W-02(NCVC)(W)-1073-06/2016 BETWEEN RAUB AUSTRALIAN GOLD MINING SDN BHD … APPELLANT AND 1. MKINI DOTCOM SDN BHD 2. LEE WENG KEAT 3. WONG TECK CHI 4. VICTOR TM TAN … RESPONDENTS 1 In the High Court of Malaya at Kuala Lumpur Civil Suit No: 23NCVC-108-09/2012 Between Raub Australian Gold Mining Sdn Bhd … Plaintiff And 1. Mkini Dotcom Sdn Bhd 2. Lee Weng Keat 3. Wong Teck Chi 4. Victor TM Tan … Defendants) CORAM: VERNON ONG LAM KIAT FCJ ABDUL RAHMAN BIN SEBLI, FCJ ZALEHA BINTI YUSOF, FCJ HASNAH BINTI DATO’ MOHAMED HASHIM, FCJ HARMINDAR SINGH DHALIWAL, FCJ 2 JUDGMENT Introduction [1] This appeal raises issues concerning certain important aspects of the law of defamation. The nucleus of the arguments advanced in the appeal concern the defence of reportage in the context of qualified privilege and the Reynolds defence of responsible journalism (see Reynolds v Times Newspaper Ltd and Others [2001] 2 AC 127). Also in issue is the role of the media in invoking freedom of expression in advancing the weighty interest of the public’s “right to know” and especially, in this context, the extent to which the media ought to be allowed to provide such information to the general public. [2] This appeal arises from the reversal by the Court of Appeal on 11 January 2018 of the decision of the High Court at Kuala Lumpur delivered on 10 June 2016. After a full trial, the High Court had dismissed the respondent's claim for defamation and malicious falsehood in relation to the publication of three articles and two videos by the appellants. The articles and videos pertain to news reports of the gold-mining activities of the respondent and the risk to the health, well- 3 being and safety of the neighbouring Bukit Koman community as a whole. [3] This appeal was then filed pursuant to the granting of leave of the following questions: “1. Whether reportage is in law a separate defence from qualified privilege or the Reynolds defence of responsible journalism and whether it is to be treated as being mutually exclusive? 2. Whether the defence of reportage being an off-shoot of the Reynolds defence of responsible journalism needs to be pleaded separately from the plea of responsible journalism itself? 3. Whether a defendant is obliged to plead either reportage or responsible journalism and not plead them in the alternative? 4. Whether the defence of reportage which is in law based on an on- going matter of public concern is sufficiently pleaded if it is stated by the defendant that the publications ‘were and still are matters of public interest which the defendants were under a duty to publish’? 5. Whether the proper test to determine if the defence of reportage succeeds is the test of adoption by the journalist of the publication as true and not for the journalist to establish his neutrality by independent verification? 6. In publishing video recordings of statements made by third parties in a press conference, whether the mere publication of such videos could be 4 held to be an embellishment of the allegations or an embracing or adoption of such statements as the truth by the news media? 7. Whether in an ongoing dispute, the impugned article or videos ought to be considered together with previous and continuing publications of the news media on the same subject matter of public concern in determining the defence of reportage? 8. Whether it is proper to award general damages for loss of goodwill and vindication of reputation to a plaintiff company that has independently been subjected to a voluntary winding up by its creditors? 9. Whether loss of goodwill can be recovered as a component of defamatory damages by a plaintiff company that has gone into insolvency?” The Material Facts [4] The relevant background facts leading to the filing of the present appeal are well stated in the court judgments and in the parties’ submissions. The salient facts, as far as they are relevant to the present appeal, are reproduced as follows. For convenience, the parties will be referred to as they were in the court of first instance or by their names as abbreviated interchangeably. 5 [5] The plaintiff was a company involved in operating a gold mine located in Bukit Koman, in the district of Raub, State of Pahang. Prior to the filing of this appeal, and in fact during the hearing of the appeal in the Court of Appeal itself, the plaintiff had been voluntarily wound-up and remains in liquidation to this day. The 1st defendant (“Mkini”) is a company that owns and operates an online news portal known as Malaysiakini on its website at www.malaysiakini.com. The 2nd defendant is the assistant news editor of Malaysiakini. The 3rd defendant is the senior journalist of Malaysiakini. The 4th defendant was, at the material time, an intern at Malaysiakini and was pursuing a degree in Bachelor of Arts in Journalism. [6] The plaintiff’s suit against the defendants was for defamation and malicious falsehood in respect of three articles and two videos published by the 1st defendant in 2012 on its malaysiakini portal. In essence, these articles and videos alleged that the plaintiff had used cyanide in its gold mining activities which had caused serious illness to the villagers and death of wildlife and vegetation and environmental pollution in Bukit Koman. The said articles and videos in summary were: 6 (a) An article titled "Villagers fear for their health over cyanide pollution" published on 19 March 2012 ("the 1st Article") which was authored by the 2nd defendant; (b) An article titled "78 pct Bukit Koman folk have 'cyanide-related' ailments" published on 21 June 2012 ("the 2nd Article") which was authored by the 3rd defendant; (c) A video presentation that was linked with the 2nd Article published on 21 June 2012 ("the 1st Video"); (d) An article titled "Raub folk to rally against 'poisonous gold mine” published on 2 August 2012 ("the 3rd Article") authored by the 4th defendant; and (e) A video presentation that was linked with the 3rd Article published on 2 August 2012 ("the 2nd Video"). [7] The plaintiff claimed that the articles and videos contained defamatory material which were false and were published by the defendants maliciously with intent to injure the plaintiff’s reputation, trade and business. The impugned parts of the articles and videos and the imputations that arose were set out in the Statement of Claim and were carefully noted by the High 7 Court and the Court of Appeal in their respective judgments as published in the law journals at [2016] 7 CLJ 124 and [2018] 4 MLJ 209. [8] The defendants, on the other hand, claimed in their Defence that the words complained of or the impugned statements in the said articles and videos were not defamatory in nature of the plaintiff. The defendants principally relied on the defence of qualified privilege and fair comment. As for the defence of qualified privilege the defendants asserted in their arguments that they have exercised responsible journalism and/or in accordance with the defence of reportage. The defendants maintained that the said articles and videos were published pertaining to matters or issues of public interest not just in Raub but of a national scale. At the High Court [9] After a trial involving 15 witnesses, the learned trial Judge found that the words complained of in all the three articles and the two videos were defamatory of the plaintiff. The learned Judge also found that although the articles and videos in question were defamatory, the defendants had successfully raised or availed themselves to the defence of qualified privilege 8 which encompassed both the Reynolds privilege defence of responsible journalism and the defence of reportage. [10] In relation to the question of whether the matters complained of were defamatory, the learned Judge concluded as follows: “[16] It is therefore my judgment that the words complained of as stated by the plaintiff in paras. 8, 11, 17, 20 and 25 of the statement of claim are capable of being defamatory of the plaintiff in their natural and ordinary meaning. I agree with the plaintiff's learned counsel that the said articles and videos impute to the plaintiff dishonourable or discreditable conduct or motives or lack of integrity on part of the plaintiff of being unethical and greedy mining company. The plaintiff has therefore succeeded in proving, on the balance of probabilities, all the three basic elements of defamation. [17] I would further note that the evidence of the plaintiff's witnesses, particularly PW1, PW2 and PW3, showed that the concern of the residents of Bukit Koman to their health and safety as depicted in the said articles and videos turned out to be without merits and groundless. The use of sodium cyanide by the plaintiff for its carbon-in-leach plant did not at all caused any pollution as the plaintiff has exercised stringent safety and appropriate methods in mining gold. In fact it was in evidence that the various health issues suffered by most of the residents of Bukit Koman were due to traces of herbicides.” 9 [11] However, the learned Judge found that the defendants had successfully made out the defence of qualified privilege or more specifically the defence known as the Reynolds privilege as propounded by the House of Lords in Reynolds v Times Newspaper Ltd and Others [2001] 2 AC 127. The learned Judge noted that the Reynolds privilege has two prerequisites before the defendants can avail to it and they are firstly, that the publication concerned a matter of public interest; and secondly, that responsible and fair steps had been taken to gather, verify and publish the information. [12] On whether the two requisites were satisfied in respect of the articles and videos in question, the learned Judge observed: “[23] On the issue of public interest, I believe the question that needs to be asked and answered is whether there was a need at the material time for the public in general to know about the information published in the said articles and videos and that the defendants as newspaper and journalist were under a public duty to tell the public. In my opinion any matter or issue that concern the health, well-being and safety of a community is always a matter of public concern, not just to that particular community but also to the general public. The defendants through their witnesses, particularly DW1, DW4 and DW10, have shown that prior to the publication of the said articles and videos, there was already extensive coverage by the other media on the issue of gold mining activities using cyanide and that the issue was also raised even in the Pahang Legislative Assembly. In 2006 onward, news began to emerge on a national scale that the residents of Bukit Koman 10 started to raise protest on the use of cyanide in the plaintiff's gold mine. News articles began to be published in newspapers such as Nanyang Siang Pau, The Star, Utusan Malaysia, Sin Chew Daily and China Press surrounding the alleged use of cyanide in the plaintiff's carbon-in-leach plant in Bukit Koman. There was also legal proceedings by way of judicial review instituted by four members of the Bukit Koman residents in 2008 to challenge the environment impact assessment report pertaining to the mining and extraction of gold in Bukit Koman. The concern of the Bukit Koman's residents pertaining to the gold mining activity of the plaintiff has even led to the formation of the BCAC, a public interest group against the use of cyanide in gold mining. In the circumstances, I think there is clear evidence that issue pertaining to the concern of the Bukit Koman's residents about the operation of the gold mine in their town was clearly a matter of public interest. [24] The first article published in Malaysiakini website on 19 March 2012, as testified by DW2 (the second defendant), was sourced from the news appearing in websites on the internet, particularly Sin Chew Daily website and Nanyang Siang Pau website. DW7 and DW8 confirmed that the news items exh. D15 and exh. D16 respectively, were published on their respective newspaper's website. Exhibit D15 and D16 was about the concern of the villagers of Bukit Koman about air pollution caused by yellow substance floating in the air. DW2 also visited other blogs that spoke about the same subject matter. And finally, DW2 contacted and spoke to Wong Kin Hoong who was at the material time the Chairman of the Bukit Koman Anti-Cyanide Committee prior to the publication of the first article. Objection were taken by learned counsel for the plaintiff on the admissibility of exhs. D15 and D16. I see no merits in the objection taken by learned counsel. The two exhibits have been confirmed and verified by the editors of the two 11 newspapers, that is DW7 and DW8, and therefore the authenticity of the same cannot be doubted. [25] I am of the opinion that the first article merely reported the concern of the Bukit Koman's residents as to their health and the suspicion that the air pollution may be caused by the plaintiff's gold mining operation. Reading the first article as a whole, one will find that it made no allegations or criticism against the plaintiff. In other words, there is no embellishment of the contents of the first article by the first and second defendants. Much has been argued by learned counsel for the plaintiff that the first and second defendants have not verified the contents of the first article with the plaintiff or with other experts before publishing the same. However, in my opinion the act of the second defendant contacting the Chairman of the Bukit Koman Anti-Cyanide Committee prior to the publication of the first article was sufficient in the circumstances of this case to constitute responsible journalism. This is because the first article is not about the truth or otherwise of the contents therein but a report on the concern of the Bukit Koman residents regarding the air pollution which they suspect was caused by the plaintiff's plant. The defendants therefore have satisfied the test of responsible journalism. [26] As for the second article with link to the first video and the third article with link to the second video, it cannot be denied that these were reproduction of the two press conferences held on 21 June 2012 and 2 August 2012. There is no evidence that the first defendant as publisher of those articles and videos, the third defendant as author of the second article, the fourth defendant as author of the third article and DW3 as the videographer for the first and second videos adopted the contents of those articles and videos as their own. As I have alluded to, the said articles and videos are matter of public concern where the public in general has the right 12 to know the information and the defendants as media and journalists were under, at least a moral duty to publish the same. [27] Further, it is my judgment that the defence of reportage is clearly available to the defendants with regard to the publication of the second and the third articles and the first and second videos. It is not so much the truth of the contents of the said articles and videos that matters, but rather the fact that they were reproduction of the two press conferences held by BCAC, first on 21 June 2012 and, second on 2 August 2012. Malaysiakini and other medias had received invitation to attend the two press conferences. The defence of reportage is therefore available to the defendants because the public interest here lies not in the truth of the contents of the said articles and videos, but on the facts that they had been made. The two press conferences held by BCAC themselves, in my view, are matter of public interest. I am aware of the general principle that a person who repeats the defamatory words of another will also be liable to the person defamed. However, it has been said that the Reynolds privilege of reportage appears to be the exception to the so-called general rule of repetition. [28] The plaintiff's learned counsel submitted that the defendants have not specifically pleaded reportage in their defence and as such should not be allowed to rely on this particular defence. I merely wish to say that reportage is one form of the Reynolds privilege and it is considered part of the qualified privilege defence. The defendants have pleaded qualified privilege as one of their defences to the plaintiff's claim in paras. 33 and 35 of the defence. In my opinion that would be sufficient to enable the defendants to prove reportage at the trial of the action. I am also in agreement with learned counsel for the defendants that the case of Harry Isaacs & Ors v Berita Harian Sdn Bhd & Ors [2011] 3 CLJ 861; [2012] 4 MLJ 191 relied upon by 13 the plaintiff's learned counsel was decided based on the particular facts of that case.” [13] The learned Judge also went on to hold that the articles and videos were published in a fair, disinterested and neutral way and that the defendants did not adopt the allegations contained therein as their own. There was also no evidence of malice on the part of the defendants. Since malice was not proved, the claim for malicious falsehood cannot succeed. In the event, the plaintiff’s claim against all the defendants was dismissed. At the Court of Appeal [14] The appeal in the Court of Appeal turned on issues relating to the defence of reportage and the defence of responsible journalism or qualified privilege. The Court affirmed the dismissal of the claim for malicious falsehood but allowed the appeal against the dismissal on the claim for defamation and awarded the appellant the sum of RM200,000.00 in general damages. [15] As reported in Raub Australian Gold Mining Sdn Bhd v Mkini Dotcom Sdn Bhd & Ors [2018] 4 MLJ 209, the reasons for allowing the appeal were as follows (at the head-notes): 14 “(1) Although the trial judge was correct in finding that the information contained in the respondent’s articles and videos was a matter of public concern or interest, the respondents had not acted fairly and responsibly and could not rely on the defence of responsible journalism as they failed to meet the relevant ten-point test propounded in Reynolds. With regard to the first article, except for seeking confirmation from the residents of Bukit Koman through the chairman of the BCAC, the verification stopped there. The respondents made no attempts or efforts to contact other experts on the matter or to contact the appellant to get its side of the story. Merely contacting the chairman of the BCAC was grossly inadequate. The article made very serious allegations against the appellant and its tone was extremely accusatory and damaging. Due to the seriousness of the allegations, responsible journalism warranted a fair and balanced reporting where the appellant should have been given an opportunity to answer the accusations (see paras 29 & 38-40). (2) The trial judge erred in finding that the respondents could rely on the defence of reportage by just pleading the defence of qualified privilege. A defendant could not rely on reportage by just pleading the defence of responsible journalism. Although reportage emanated from the same product (responsible journalism), it had distinctive features of its own which set it apart from the defences of responsible journalism or qualified privilege. If the respondents wanted to rely on the defence of reportage, they should have expressly pleaded that defence so that the appellant was not taken by surprise. By not pleading reportage, the respondents were precluded from relying on that defence or from proving reportage at trial. The defences of reportage and responsible journalism were in effect mutually exclusive and incompatible in that once reportage was relied upon, it was ‘forensically problematical to fall back upon an alternative defence of responsible 15 journalism’ (per Sedley LJ in Charman v Orion Publishing Group Ltd and others [2008] 1 All ER 750). In the case of reportage, there was, inter alia, complete neutrality which inferred a state of mind and intent whereas in responsible journalism, a view might be justifiably proffered. The respondents should have decided which of the two they wanted to plead — reportage or responsible journalism. Pleading in the alternative did not work here (see paras 63 & 69). (3) Even if a plea of qualified privilege or responsible journalism encompassed a plea of reportage without the need to expressly plead the latter, the evidence as a whole, considered objectively, showed that the respondents could not avail of the defence of reportage. The allegations made against the appellant were not reported in a fair, disinterested and neutral manner. The reporting was unbalanced and slanted against the appellant. The respondents had not only embellished the allegations against the appellant but had embraced and adopted them as the truth and as their own (see paras 70 & 74-76). (4) Although the respondents’ conduct displayed irresponsible journalism and partiality in their reporting which could not be justified under the cover of public interest, it was insufficient to constitute malice to sustain a cause of action for malicious falsehood. The appeal against the dismissal of the claim for malicious falsehood was therefore dismissed (see para 77). (5) The appellant had not proven to what extent its business or trade was affected by the impugned articles and videos. On the other hand, the respondents’ attitude throughout was unyielding, unrepentant and arrogant. They refused to retract or apologise for the libel. Considering all the facts and circumstances, the court was of the view that a global sum of 16 RM200,000 was adequate as general damages to the appellant for loss of goodwill and vindication of its reputation (see paras 82, 85 & 92).” [16] Nevertheless, the Court of Appeal agreed with the High Court’s finding that the subject matter of the articles and the videos was of public interest as they concerned the health, well-being and safety of a community. The appeal was allowed on the ground of a defect in the pleadings as well as the failure on the part of the defendants to establish the defence of reportage and the defence of responsible journalism or qualified privilege. Issues for determination [17] Following from the leave questions and the arguments raised by the parties, and at the risk of some oversimplification, the broad issues for our consideration and determination are as follows. The first issue is whether reportage is in law a separate defence from the Reynolds defence of responsible journalism and whether it is mandatory for the two defences to be pleaded separately. Allied to this issue is whether the two defences can be pleaded in the alternative. 17 [18] The second issue is whether the defendants had, as a matter of law and fact, made out a case of reportage and/or qualified privilege in the Reynolds sense in respect of the articles and videos as affirmatively determined by the High Court but overruled by the Court of Appeal. [19] The third issue, which does not arise from the leave questions or from the decision of the Court of Appeal, is whether the claim for defamation in respect of the 2nd Article and the 1st Video is actionable in view of the said publication being found not defamatory as eventually determined by this Court in Raub Australian Gold Mining Sdn Bhd (in creditors’ voluntary liquidation) v Hue Shieh Lee [2019] 3 MLJ 720 (“Hue Shieh Lee”). Third Issue: whether the articles and videos are actionable [20] For convenience, the third issue ought to be dealt with at the outset. In Hue Shih Lee's case, the plaintiff here filed an action against Hue Shih Lee, who was the Vice Chairperson of the Pahang Ban Cyanide in Global Mining Action Committee (“BCAC”) for libel and malicious falsehood in respect of two (2) articles that appeared in malaysiakini.com ('the First Article') and freemalaysiatoday.com ('the Second Article') websites. The 18 First Article there is the 2nd Article sued upon in the present appeal. The First Article contained a link to a video of a press conference given by several individuals including Hue Shih Lee regarding the plaintiff. These articles were found to be not defamatory of the plaintiff by the High Court which decision was thereafter affirmed by the Court of Appeal and the Federal Court. [21] Now, the defendants here, in relying on Hue Shih Lee's case, assert that in view of the findings of the Federal Court that the two (2) articles were not defamatory of the plaintiff, this Court is therefore bound by the said decision since the statements made by Hue Shih Lee are those produced in the 2nd Article and the 1st Video in the present appeal. [22] The defendants also argued that the determination by the Federal Court that the article is not defamatory creates an estoppel per rem judicatum against the present plaintiff. Relying on Thoday v Thoday [1964] 1 All ER 341 as cited in Malpac Capital Sdn Bhd v Yong Tong Moi [2017] 1 MLJ 262, it was asserted that the claim’s actionability ceases because it becomes merged in the judgment. It would be legally untenable, it was suggested, with the 2nd Article having been found to be not defamatory in 19 the contextual sense by the Federal Court, to now hold that the 1 st and 3rd Articles of the same genre are defamatory. [23] Now, this Court in Hue Shih Lee was confronted with the same issue where it was submitted by the plaintiff there that the Court of Appeal judgment in the present case holding that the Malaysiakini article was defamatory was binding on the Federal Court as a matter of estoppel since they involved the same articles. The Court was not persuaded by this argument and, as that decision effectively provides the answer to this issue, it is necessary to set out in extenso as to how this Court dealt with the issue: “[75] In the course of his submissions before us, learned counsel for the appellant raised issues on other defamation suits filed by the same appellant concerning the same articles (as in the present case) against other defendants namely the MKini and FMT. The respondent in the present case was not the party in those cases. [76] The MKini suit was decided by another High Court after the present case was decided by the Kuala Lumpur High Court on 13 May 2015. On appeal, the Court of Appeal allowed the appeal on the present case on 13 April 2016. In the MKini suit, both the High Court and the Court of Appeal ruled that the impugned articles (the very same articles in the present case) were defamatory of the appellant. Learned counsel for the appellant submitted before us that the decision of the High Court and the Court of Appeal in the MKini suit on the determination that the articles were 20 defamatory is binding on the Federal Court in the present case before us; as a matter of estoppel, not judicial precedent. [77] In the FMT suit, there was no judicial pronouncement by the court that the words in the articles were defamatory. In that case, the defendant therein (MToday Sdn Bhd — FMT) as the publisher tendered an apology taking full responsibility for the articles. [78] It is noted that the respondent herein was not a party in both the MKini suit as well as the FMT suit; nor did she has a say in the apology agreed upon by the parties in the FMT suit. Each case must be dealt with and decided on its own merit after hearing all parties to the respective suits. The plaintiff in each case must be required to prove each and every one of his claims against each defendant individually, on all the relevant elements to establish defamation, ie defamatory effect of the statements, directed at the plaintiff, and publication to third party. [79] We cannot agree with learned counsel’s submissions that this court is bound by the decision of the High Court in the MKini suit, especially bearing in mind that in the present case before us, both the High Court and the Court Appeal have made concurrent findings of facts entirely different from the High Court’s MKini suit. Both the High Court and the Court of Appeal in the present case had ruled that both the impugned Articles and the video were not defamatory and their decisions were delivered earlier in time. In short, it must be stressed that this court is not bound to accept, nor is the respondent estopped by the finding of the High Court in the MKini case that the impugned words are defamatory as suggested by the appellant’s counsel. [80] It must also be noted that defamation claims are ‘sui generis’, in that multiple suits are permitted against different defendants in relation to the 21 same publication; and therefore, the defendant in the present case, cannot be estopped by a determination in any other suit to which he was not a party. The ruling made by the High Court in the MKini suit, where the respondent herein, was not a party thereto, will not bind the respondent herein, who in a different proceeding may secure a different result based on the facts and circumstances of her own defence. It would be a breach of natural justice rule and an abuse of the court’s process for a plaintiff (the appellant) to be permitted to file multiple suits against different defendants in defamation actions, but to be relieved of the burden of proof merely because one suit is resolved in its favour. In dealing with the present appeal before us, we only need to examine the decisions of the Court of Appeal and the High Court in this case with respect to the facts and circumstances of its own. [81] We agree with learned counsel for the respondent that the meanings ascribed to those words in the impugned articles in the MKini suit by the appellant and pleaded against MKini were different from those pleaded against the respondent in this case. As such, the courts in this case were required to look at the impugned words from an entirely different perspective as compared to the court in the MKini case.” [24] Now, to recall, the High Court in the present case had held that the articles and the videos in question were defamatory of the plaintiff. This finding appears in paragraph [16] of the judgment: “[16] It is therefore my judgment that the words complained of as stated by the plaintiff in paras. 8, 11, 17, 20 and 25 of the statement of claim are capable of being defamatory of the plaintiff in their natural and ordinary 22 meaning. I agree with the plaintiff's learned counsel that the said articles and videos impute to the plaintiff dishonourable or discreditable conduct or motives or lack of integrity on part of the plaintiff of being unethical and greedy mining company. The plaintiff has therefore succeeded in proving, on the balance of probabilities, all the three basic elements of defamation.” [25] The defendants did not appeal in respect of this part of the decision. The Court of Appeal was only concerned with the defences raised by the defendants and not with the question of whether the articles and videos were defamatory. It must then follow, in my view, that the defendants had accepted the decision of the High Court in this respect and cannot now reassert the said issue in this Court. [26] As defamation claims are sui generis, it is up to the parties to take their own respective positions as to the conduct of the litigation even if the alleged defamatory material is the same. It cannot be said that two different Courts have arrived at two different conclusions on the same factual and legal issue as the defendants in the instant case had effectively abandoned the issue which they now wish to resurrect. Put simply, the Court is now not required to decide on the issue as, because of the defendants’ election, the issue is no longer before the Court. The position that obtains accords with the adversarial tradition that underpins litigation in the common law world. In the 23 circumstances, the argument by the defendants in this respect, as persuasive as it seems, cannot be sustained. [27] It should however be clarified, lest it be misunderstood, that if the question of whether the impugned articles and videos were defamatory was a live issue, then the application of issue estoppel or estoppel per rem judicatum may be relevant against the plaintiff/respondent here. Since this Court in Hue Shih Lee had ruled that the same articles were not defamatory of the respondent here, it would have been legally untenable for this Court to now say otherwise. First Issue – the law on reportage and Reynolds privilege [28] Returning now to the first issue, it has long been recognized that on the grounds of public policy and convenience, the law protects even false and defamatory statements which are made on an occasion of privilege. The privilege is not absolute but qualified. So, where privilege is abused in the case of express or actual malice in the publication, the privilege fails (see Horrocks v Lowe [1975] AC 135). So, in essence, where privilege is availed, the law may actually leave a person defamed with his reputation in tatters and with no compensation. A person untrained in the law may find this 24 proposition of protecting untrue and defamatory publications quite remarkable and discomforting. Tipping J in Lange v Atkinson [1998] 3 NZLR 424 at p 477 alluded to this curious state of affairs: “It could be seen as rather ironical that whereas almost all sectors of society, and all other occupations and professions have duties to take reasonable care, and are accountable in one form or another if they are careless, the news media whose power and capacity to cause harm and distress are considerable if that power is not responsibly used, are not liable in negligence, and what is more, can claim qualified privilege even if they are negligent. It may be asked whether the public interest in freedom of expression is so great that the accountability which society requires of others, should not also to this extent be required of the news media.” [29] Now, of course, the limiting factor in asserting privilege as a defence is really the “occasions of privilege” which are determined mostly by case law. Lord Atkinson in Adam v Ward [1917] AC 309 provided the widely accepted formulation of determining an occasion of privilege as follows (at p 334): “[A] privileged occasion is, in reference to qualified privileged, an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made had a corresponding interest or duty to receive it. This reciprocity is essential.” 25 [30] This reciprocity test, as it came to be called, did not work so well in the case of mass publications such as those provided by the media. It was considered that qualified privileged ought to be confined to private communications as opposed to communications made to the whole world. Hence, the media were largely unsuccessful in persuading the courts that they had a duty to publish and the public had a duty to receive such communications even on matters of legitimate public interest. The notable exception is the case of publication of fair and accurate reports of parliamentary and judicial proceedings. [31] A seismic shift in judicial thinking then occurred at about the same time through landmark decisions in Australia (Lange v Australian Broadcasting Corporation [1997] 189 CLR 520), New Zealand (Lange v Atkinson [1998] 3 NZLR 424) and the United Kingdom (Reynolds v Times Newspaper Ltd [2001] 2 AC 127(“Reynolds”)) although there was some divergence in the approach to the defence of qualified privilege for mass communications. The differences in approach of the three cases was discussed in Dato’ Seri Anwar bin Ibrahim v The New Straits Times Press (M) Sdn Bhd & Anor [2010] 3 AMR 514; [2010] 2 MLJ 492 (“Anwar v NST”). 26 [32] These differences are not entirely relevant in the present context except to observe, as noted in Anwar v NST, supra, that the widest scope of protection for the media is probably that in Reynolds since the protection was for “matters of serious public concern”. In Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44, [2006] 4 All ER 1279, [2007] 1 AC 359 (“Jameel”), Baroness Hale of the House of Lords described the Reynolds defence as one that “springs from the general obligation of the press, media and other publishers to communicate important information upon matters of general public interest and the general right of the public to receive such information”. She concluded: “In truth, it is a defence of publication in the public interest.” (at p 685). [33] Underpinning this shift in thinking was the appreciation that members of the community in a modern plural democracy have a legitimate interest in receiving information concerning matters of public interest or serious public concern. Such matters would include the conduct of government and the exercise of public functions as well as matters relevant to the safety, health and well-being of ordinary citizens. The welfare of the community is best served by protecting the free flow of information, ideas and vigorous discussion initiated by the media and others of matters of public interest. 27 [34] Not unlike Australia, New Zealand and the United Kingdom, Malaysia is also a modern pluralistic democracy with fundamental human rights guaranteed under the Federal Constitution. Freedom of speech is provided under Article 10 of the Federal Constitution with restrictions to be provided by laws against matters such as defamation. So, for the same reasons as advanced in the three jurisdictions, and taken together with the constitutional imperative for protection of freedom of expression, matters of public interest are also deserving of protection in Malaysia. [35] To this end, the courts in Malaysia have followed and accepted the Reynolds defence. In the present case, the courts below applied the Reynolds approach in coming to their decisions. Significantly, this Court in Syarikat Bekalan Air Selangor Sdn Bhd v Tony Pua Kiam Wee [2015] 6 MLJ 187 (“Tony Pua”), in applying the Reynolds privilege, went on to also hold that the public interest defence should, by no means, be synonymous with journalists or media publications and on the ground of public interest, there was a sufficient basis for the defence to be extended to anyone who publishes or discloses material of public interest in any medium to assist the public to comprehend and make an informed decision on matters of public interest that affect their lives. 28 [36] It is therefore important to address the Reynolds defence and the cases that further developed the nature and scope of the defence, that is, the decision in Jameel, supra, and the decision in Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 4 All ER 913, [2012] 2 AC 273 (“Flood”). It must be observed at the outset that the Reynolds defence is not so much about “occasions of privilege” in the traditional sense but rather of the published material itself being privileged. As will become apparent in the following discussion, the issue of malice in the traditional sense does not arise as it is built into the multi-factorial test devised in Reynolds (see Jameel at [46]). [37] In Reynolds, a two-stage test was formulated by for determining whether the Reynolds defence applied. The first stage involved determining whether the subject matter of the publication was a matter of public interest. The second stage was concerned with whether the steps taken to gather and publish the information were responsible and fair. [38] So what is a matter of public interest? It is admittedly a broad concept but for the defence to bite, it must refer to matters involving public life and the community, including important matters relating to the government and the public administration, as opposed to matters which are purely personal and private (see Reynolds, Court of Appeal, [2001] 2 AC 127 at 176). 29 [39] Gatley on Libel and Slander (12th Edition) at para 15.6 highlighted previous decisions where the concept of public interest was approved as follows: “These have included the business of government and political conduct; the promotion of animal welfare, the protection of health and safety, the dealings of a Member of Parliament with a foreign regime hostile to this country, the fair and proper administration of justice, the conduct of religious groups; discipline in schools; the conduct of the police; cheating, corruption and the pressure on elite athletes from an early age in sport; breach of charitable fiduciary rules; involvement in serious crimes, corporate malpractice; and the correction of prior statements or misrepresentations by others”. [40] In order to determine if the publication was in the public interest, it is necessary to consider the story as a whole as well as giving due allowance for editorial judgment as to how the story is to be presented. Lord Hoffman said as much in Jameel, supra at [51-52]: “51. If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more 30 important it is that it should make a real contribution to the public interest element in the article. But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.” [41] In similar vein, Lord Mance in Flood, supra, concluded tersely at [137]: “137 The courts therefore give weight to the judgment of journalists and editors not merely as to the nature and degree of the steps to be taken before publishing material, but also as to the content of the material to be published in the public interest. The courts must have the last word in setting the boundaries of what can properly be regarded as acceptable journalism, but within those boundaries the judgment of responsible journalists and editors merits respect. This is, in my view, of importance in the present case.” [42] The second stage shifts to the question of whether the steps taken to gather and publish the information were fair and reasonable. Lord Nicholls in Reynolds sets out a list of ten non-exhaustive circumstances to determine if 31 the publisher has exercised responsible journalism although, as pointed out earlier, the defence is not confined to the press. The ten factors are: “1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true; 2. The nature of the information, and the extent to which the subject matter is a matter of public concern; 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories; 4. The steps taken to verify the information; 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect; 6. The urgency of the matter. News is often a perishable commodity 7. Whether comment was sought from the plaintiff. The plaintiff may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary; 8. Whether the article contained the gist of the plaintiff’s side of the story; 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact; 10. The circumstances of the publication, including the timing.” 32 [43] As Lord Nicholls explained later in Bonnick v Morris [2003] 1 AC 300, these factors were necessary to provide the right balance between freedom of expression and reputation (at p 309): “Shortly stated, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege.” [44] So, how should the ten factors be assessed by the courts? As Lord Nicholls said in Reynolds, the list is not exhaustive but merely illustrative. A balancing operation must be carried out and the weight to be given to any of the factors will vary from case to case. They are certainly not ten hurdles or tests to be negotiated in the sense that if any one of them is not met, the defence fails. As Lord Hoffman said in Jameel, the indicia of ‘responsible journalism’ were not mandatory obstacles to be overcome. The standard of conduct required of a newspaper must be applied in a practical and flexible manner having regard to practical realities (see Jameel at [56]). 33 [45] In the same context as well, Lord Nicholls in Reynolds was at pains to reiterate (at p 205): “Further, it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.” [46] Now, another aspect of the defence of publication in the public interest, which is relevant to the instant appeal, is the defence of reportage. Reportage, despite its fancy label, is really shorthand for neutral reporting of attributed allegations. It is reminiscent of privilege accorded to fair and accurate reports of parliamentary and court proceedings. This defence was first explored and applied in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634; [2002] EMLR 215. [47] This defence was also raised in Anwar v NST, supra where the defence was summarised as follows: 34 “[74] As I had indicated earlier, the law allows reporting privileges through fair and accurate reports of parliamentary and court proceedings. The defendants here are relying on a more general privilege known as reportage. According to Gatley on Libel and Slander (11th Ed) this doctrine first surfaced in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EMLR 13. Reportage in that case was depicted as 'a convenient word to describe the neutral reporting of attributed allegations rather than their adoption by the newspaper'. Since then reportage has been considered in a number of cases; Mark v Associated Newspapers Ltd [2002] EMLR 839; Galloway v Telegraph Group Ltd [2006] EWCA Civ 17; Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] 3 WLR 642; Roberts & Anor v Gable & Ors [2008] 2 WLR 129 and Charman v Orion Publishing Group Ltd [2008] 1 All ER 750. [75] In Roberts v Gale, Ward LJ described reportage as 'the neutral reporting without adoption or embellishment or subscribing to any belief in its truth of attributed allegations of both sides of a political and possibly some other [2010] 2 MLJ 492 at 520kind of dispute'. Significantly, Ward LJ also alluded to the relationship of the repetition rule with reportage cases. The repetition rule as set out by Lord Reid in Lewis v Daily Telegraph [1964] AC 234 at p 260 was that 'repeating someone else's libelous statement is just as bad as making the statement directly'. And that is what happens in reportage cases. However, Ward LJ held that the repetition rule and the reportage defence are not in conflict with each other. The former is concerned with justification, the latter with privilege. A true case of reportage may give the journalist a complete defence of qualified privilege. If the journalist does not establish the defence then the repetition rule applies and the journalist will have to prove the truth of the defamatory words (see Roberts & Anor v Gable & Ors at p 153). 35 [76] From a consideration of the cases cited, it can be safely asserted that reportage would normally apply as follows. It would only apply in cases where there is an ongoing dispute where allegations of both sides are being reported. The report, taken as a whole, must have the effect that the defamatory material is attributed to the parties in the dispute. The report must not be seen as being put forward to establish the truth of any of the defamatory assertions. This means that the allegations must be reported in a fair, disinterested and neutral way. The important consideration here is that the allegations are attributed and not adopted. Therefore reportage will not apply where the journalist had embraced, garnished and embellished the allegations.” [48] Since then, reportage came to be considered in Flood, supra where Lord Phillips PSC restated the defence of reportage in succinct terms: “… Reportage is a special, and relatively rare, form of Reynolds privilege. It arises where it is not the content of a reported allegation that is of public interest, but the fact that the allegation has been made. It protects the publisher if he has taken proper steps to verify the making of the allegation and provided that he does not adopt it. Jameel's case was analogous to reportage because it was the fact that there were names of substantial Saudi Arabian companies on the black list that was of public interest, rather than the possibility that there might be good reason for the particular names to 36 be listed. Just as in the case of reportage, the publishers did not need to verify the aspect of the publication that was defamatory.” [49] So, to surmise, the distinction between the two lies in whether the public interest is concerned with the fact that the statement is made and not the truth of its contents. This distinction was made clear by Lord Hoffman in Jameel as follows (at [62]): “In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true, but there are cases ('reportage') in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth.” [50] To complete the narrative on the law, it is also necessary to state that the law in the United Kingdom has undergone further change. The defence of publication on a matter of public interest is now a statutory defence enacted in section 4 of the UK Defamation Act 2013. It replaces the common law defence of Reynolds public interest privilege. It may therefore be helpful to set out the whole section: “4 Publication on matter of public interest (1) It is a defence to an action for defamation for the defendant to show that— 37 (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest. (2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case. (3) If the statement complained of was, or formed part of, an accurate and impartial account of a dispute to which the claimant was a party, the court must in determining whether it was reasonable for the defendant to believe that publishing the statement was in the public interest disregard any omission of the defendant to take steps to verify the truth of the imputation conveyed by it. (4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate. (5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. (6) The common law defence known as the Reynolds defence is abolished.” [51] The Explanatory Notes to the UK Defamation Act 2013 suggest that this new section 4 is based on the Reynolds case and the law which developed in subsequent cases, in particular, the case of Flood. The intention was to reflect the fact that the common law test contained both a subjective element – what the defendant believed at the time – and an objective element – whether the belief was a reasonable one for the defendant to hold in all the circumstances. 38 [52] After the statutory defence came into effect on 1 January 2014, an important issue arose as to the effect of the role of responsible journalism which was the main focus in the Reynolds case. This issue came to be considered in a recent case, Serafin v Malkiewicz and others [2020] UKSC 23; [2020] 4 All ER 711 (“Serafin”), where the UK Supreme Court observed that although the origins of the section 4 defence can be traced back to Reynolds v Times Newspapers Ltd [1999] 4 All ER 609, section 4 does not simply codify the old Reynolds defence. In particular, the checklist of factors set out in Reynolds should not be used as a 'checklist' in applying section 4 of the Defamation Act 2013. However, that is not to say that one or more of them may well be relevant as to whether the defendant's belief was reasonable within the meaning of s. 4(1)(b) of the Act. [53] It may then be fair to say that the law in the United Kingdom has taken a significant swing in focus in that the Reynolds defence of responsible journalism has now shifted to a concept of reasonable belief that the publication is in the public interest. The focus is now on what the defendant publisher believed at the time rather than what a judge believes some weeks or months later (see Serafin, supra at para [62]) with the advantage of leisure and hindsight (see para [40] above). This new shift in focus avoids the 39 inflexible and rather strict way in which the courts have regarded the Reynolds test as some kind of checklist or hurdles for the defendants to overcome which to a great extent discouraged investigative reporting. Interpreted in this fashion, it is more than likely that this statutory defence of public interest would be a less vigorous test for the media and, in the end, a more attractive and appealing proposition all round. It is also significant that the defence of reportage of an “accurate and impartial account of a dispute” has now been statutorily confirmed. Notably, Australia has followed a similar path by recently amending its Defamation Act 2005 to include a new public interest defence in section 29A which was modelled on section 4 of the UK Defamation Act 2013 but with some differences. [54] It is, of course, significant for us that the Reynolds defence is no longer followed in the country of its origin. The two-stage test in the Reynolds defence has been replaced by a different three requirements test as set out in section 4 of the UK Defamation Act 2013. In this new test, the defendant will have to firstly establish that the statement was on a matter of public interest, secondly, that the defendant believed that publication of it was in the public interest and thirdly, that such belief was reasonable (see Serafin, supra at para [74]). Considering the facts and the evidence as adduced in 40
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